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CROSS v. BURKE.

decided: November 14, 1892.

CROSS
v.
BURKE.



APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Author: Fuller

[ 146 U.S. Page 83]

 MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

It was not denied in the Supreme Court of the District that the time and place of execution are not parts of a sentence of death unless made so by statute. Holden v. Minnesota, 137 U.S. 483, 495; Schwab v. Berggren, 143 U.S. 442, 451. But it was insisted that in the District of Columbia the time has been made a part of the sentence by section 845 of

[ 146 U.S. Page 84]

     the Revised Statutes of the District, which is in these words: "To enable any person convicted by the judgment of the court, to apply for a writ of error, in all cases when the judgment shall be death, or confinement in the penitentiary, the court shall, upon application of the party accused, postpone the final execution thereof to a reasonable time beyond the next term of the court, not exceeding in any case thirty days after the end of such term." And it was contended that the time fixed by such a postponement is to be regarded as a time fixed by statute, and that the power of the court to set a day for execution is thereby exhausted.

The Supreme Court of the District of Columbia, speaking by James, J., held that "the subject-matter dealt with in this provision was not the powers of the court at all; it related simply to a right of the accused in a particular instance, that is, a right to a postponement of the time of executing his sentence in case he should apply for it in order to have a review of alleged error. With the exception of this restriction in the matter of fixing a day for execution, the power of the court was not made the subject of legislation, but was left as it had been at common law. The whole effect of the statute was to declare that, in case of an application for the purpose of obtaining a review on error, the day of execution should not be set so as to cut off the opportunity for review and possible reversal;" that the power of the court to set a day for execution was not exhausted by its first exertion; and that if the time for execution had passed for any cause, the court could make a new order.

We have held that this court has no jurisdiction to grant a writ of error to review the judgments of the Supreme Court of the District in criminal cases, either under the judiciary act of March 3, 1891, (26 Stat. 826, c. 517); or under the act of Congress of February 6, 1889, (25 Stat. 655, c. 113,) or any other; In re Heath, Petitioner, 144 U.S. 92; Cross v. United States, 145 U.S. 571. Have we jurisdiction over the judgments of that court on habeas corpus?

Under the fourteenth section of the judiciary act of 1789, 1 Stat. 73, c. 20, the courts of the United States and either of

[ 146 U.S. Page 85]

     the Justices of the Supreme Court, as well as the Judges of the District Courts, had power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment; but this extended in no case to prisoners in jail, unless in custody under or by color of the authority of the United States, or committed for trial before some court of the United States, or necessary to be brought into court to testify.

By the seventh section of the act of March 2, 1833, 4 Stat. 634, c. 57, the power was extended to all cases of prisoners in jail or confinement, when committed or confined on or by any authority or law for any act done or omitted to be done in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof.

By the act of August 29, 1842, 5 Stat. 539, c. 257, the power was further extended to issue the writ when the prisoner, being a subject or citizen of a foreign State and domiciled therein, "shall be committed or confined, or in custody, under or by any authority or law, or process founded thereon, of the United States, or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, or order, or sanction, of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof."

By the first section of the act of February 5, 1867, 14 Stat. 385, c. 28, it was declared that the courts of the United States and the several Justices and Judges thereof should have power "to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution or of any treaty or law of the United States." And it was provided that "from the final decision of any judge, justice, or court inferior to the Circuit Court, an appeal may be taken to the Circuit Court of the United ...


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